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JAMES COUSER*
Abstract
In this paper a number of the legal, ethical and social issues raised by our
ever increasing reliance upon new technologies are considered and
discussed.
The spectre of software piracy is examined, along with its relationship to
the criminal offence of theft, and the difficulties of ascribing the label
thief to those who engage in such conduct are addressed.
Particular attention is given to extent to which many large software
programmers are, like the robber barons of old, attempting to reinvent
themselves as paragons of respectability now that it is in their perceived best
interests to do so.
Finally, it is suggested that our current conceptions of property are too
outdated to adequately balance the competing issues at stake between that
information which can legitimately be owned outright, that which can be
* I would like to acknowledge the guidance provided to me by Professor R.A.A. McCall Smith of the
University of Edinburgh whilst writing this paper, and also thank Miss Catherine Cosgrave for her very
helpful comments on an earlier draft. The responsibility for any errors which remain is, however, wholly
mine.
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SOFTWARE PIRACY AND THE DORIS DAY SYNDROME ETC.
owned for a given period of time, and that which should always be regarded
as being in the public domain.
1 Introduction
When I first studied international law, I was introduced to the topic of
crimes under the ius gentium, the law of all peoples. These were crimes so
heinous, with such international ramifications, that all states have both
jurisdiction and obligation to stop them wherever they are found. They
included slavery and genocide and, most memorably to undergraduate
eyes, piracy. The professor pointed out jovially that it was only piracy of
ships and planes that was condemned in this manner, not piracy of
records or computer programmes. Nowadays, I would not be so sure.1
There can be little doubt that we live in a rapidly changing world; or that
just as what was true for our parents may no longer hold true for us, so too
those notions and norms that we currently view as universal may seem less
so to our children; but Boyles observation is strong stuff. Can we really say
that what has hitherto tended to be the province of intellectual property
should become an aspect of the ius gentium? Or, if a more restricted view is
taken, is it still nonetheless possible to argue that such crimes2 cannot
adequately be dealt with by the framework of our criminal law as it presently
stands, and that a fresh approach is needed?
Increasingly, we find ourselves encouraged by powerful organisations
such as Microsoft and IBM, and regulatory bodies such as the Business
Software Alliance and the Federation Against Software Theft, to regard
copyright infringements as software piracy or software theft.3 The
message being put across by this terminology is that, whatever the strict
legal position might happen to be, stealing software is morally no different
1
J. Boyle Shamans, Software and Spleens (Harvard, 1996), p.121.
2
Even as the law presently stands, the English conception of copyright allows for both civil and criminal
liability, depending upon the precise circumstances of the infringement involved. Accordingly, my use of
the terms crime and piracy in this paper are not wholly disingenuous. Although I do accept that as labels
they inevitably carry with them pejorative overtones, my intention here is not to steer the reader towards any
particular prejudice, but rather to utilise relatively easy to comprehend descriptions. Infringement might
have proved a more neutral terminology, but this is, after all, principally a paper on the boundaries of the
concept of theft, rather than the boundaries of intellectual property law.
3
The strength of the computer industry, and in particular the American computer industry, should not be
underestimated here. As a result of intense, and doubtless highly expensive, lobbying by the Software Action
Group Europe which represents such household American names as IBM, Microsoft, Apple and Digital
Equipment Corporation a 1989 Brussels directive dictated that the copyright laws of member states should
be amended to extend complete protection to all software. Such a wholesale extension of the existing law
was only prevented when the European Committee for Interoperable Systems formed by European com-
puter companies such as Olivetti, Bull and Nokia lobbied for a less stringent system of copyright which
would not have the effect of further tightening the American stranglehold over the software industry; see:
Computer Ethics (1994), T. Forester and P. Morrison, p. 65.
2
JAMES COUSER
to stealing the computer on which to make use of it. The question I will
attempt to address in this paper is whether that is correct, and if it is what, if
any, implications this has for the criminal law in this area.
4
The New Hackers Dictionary (1993), E. Raymond.
5
This is a complex issue in itself. There can be little doubt that in many of the recorded cases on the
subject the hackers motivations were not or at the very least it was claimed that they were not malicious;
see: R v Gold [1988] 2 WLR 984 (investigative journalism) or the American case of Morris (Benign Nature
of Crime Spares Hacker from Prison, B. Brock, The Australian, 8/5/90). However, research conducted on
business students indicates that students who tended to use computers more are more likely to pirate software. (see:
Toward a Profile of Student Software Piraters, R. Sims, H. Cheng and H. Teegen (1996) 15 J. of Bus. Ethics
839, 846. Of course it may simply be the case that those engaged in such a socially dubious practice as
hacking are unable to live up even to the ethical norms that they set themselves, despite recognising their
worth and perhaps even aspiring to them.
6
University of London Press v University Tutorial Press [1916] 2 Ch. 601, 610, per Peterson J.
7
S.1(1) Theft Act 1968.
3
SOFTWARE PIRACY AND THE DORIS DAY SYNDROME ETC.
3 Borrowing as Theft
At the heart of this discussion lies the distinction between actively depriving
another permanently of something tangible and merely withholding
some benefit from them, and it is here that the borrowing cases are at their
most clearly analogous. My software programmers umbrella is not an
ornament or an investment, its value to him lies in its ability to keep him dry,
and the fact that it is returned to him once the rain has passed is likely to do
little to assuage the anger he feels. In addition to his ownership of the
4
JAMES COUSER
The process of copying was done rapidly. The films were only out of the
cinema and out of the hands of Lloyd for a few hours and were always
back in time for their projection to take place at the advertised times to
those people who attended the cinema to see them.
8
Res corporales are according to the legal definition physical things which can be touched; and res incor-
porales are things which do not admit of being handled, but consist in jure, and so are more properly rights
than subjects ... . All rights therefore are incorporeal. See: Burghead Harbour Co. v George (1906) 8 F 982, per
Lord Kinnear.
9
These issues are well discussed in Owning Rights and Things, G. Gretton (1997) 8(2) Stellenbosch Law
Review Regstydskrif 176.
10
Criminal Law Revision Committee, Eighth Report, Theft and Related Offences (1966), Cmnd. 2977.
11
S.6(1) Theft Act 1968; S.6(2) of the 1968 Act deals with the problem of those who part with anothers
property under a condition as to its return for example, where instead of borrowing the software program-
mers umbrella for the duration of a storm, I pawn it for some alternative period of time and is accordingly
not relevant to the discussion at hand.
12
R v Lloyd [1985] 2 All ER 661.
5
SOFTWARE PIRACY AND THE DORIS DAY SYNDROME ETC.
The question before the court was whether, notwithstanding the inten-
tion to return the films, Lloyds actions could amount to a constructive
intention to permanently deprive pursuant to S.6(1) of the 1968 Act.
The answer given, simply, was that it could not: Borrowing is ex hypothesi not
something which is done with an intention permanently to deprive.14 Considering
the phenomena of software piracy, it seems clear that if removing some-
thing for a few hours will not amount to a constructive intention to
permanently deprive, then not removing it all can hardly be a more culp-
able act.
It is sometimes suggested that what S.6(1) of the 1968 Act strikes at is those
situations where, having borrowed something, the defendant has used up
all of the value or virtue in the item. The rogue who borrows a football
season ticket intending to return it only once it has expired is but the most
obvious example. However, the difficulty with this approach is that so
viewed S.6(1) assumes a decidedly binary aspect because, as Professor Smith
observes, if the life of the season ticket is viewed as a continuum then the
problem of exactly where on this continuum liability for theft should be
imposed suggests that it should not be theft of the ticket unless D intends to keep it
until it has lost all its virtue.15
Legally this may well be correct, but the black or white morality which it
presupposes of a world in which a borrowing is either wholly supportable or
wholly insupportable seems to me to take little account of the complexities
of the modern computer age in which we live.
Furthermore, attempts to unravel the Gordian Knot of S.6(1) of the 1968
Act by arguing that, for instance, the right to see each match is a separate thing in
action, of which P is permanently deprived once that match is over,16 whilst
undoubtedly ingenious, display an insufficient regard to the extent to
which the nature of property ownership rights have irrevocably altered
even over such a relatively short period as the past thirty years.17
13
Ibid, 663.
14
Ibid, 667.
15
The Law of Theft (1997), J. Smith, para. 2-135.
16
Ibid, fn.1.
17
In fact this analysis may also not be entirely satisfactory under a more traditional analysis of property
ownership as, if instead of it being a season ticket for Nottingham Forest which is borrowed, it is a railway
travelcard this solution would implicitly result in P having been simultaneously deprived of an enormous
amount of individual things in action, many of which it would have been physically impossible for him to
have availed himself of as, obviously, he can only travel on one train at a time. Whilst it would be possible to
rationalise this by arguing that P was deprived of the opportunity to take these journeys had he wished to do
so, this strikes me as being somewhat artificial because, as we shall see, the 1968 Act protects property, and
not rights over or rights which are ancillary to property, and the property in this example is the season ticket
itself and not the journeys it facilitates.
6
JAMES COUSER
18
Supra n.12, 665.
19
See: The Metamorphosis of Section 6 of the Theft Act, J. Spencer [1977] Crim.LR 653.
20
Supra n.12, 666.
21
The Theft Acts 1968 and 1978 (1982), E. Griew, para. 2-73.
22
R v Bagshaw [1988] Crim.LR 321.
23
Supra n.15, para. 2-128.
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SOFTWARE PIRACY AND THE DORIS DAY SYNDROME ETC.
The spirit of this passage was adopted by the English Law Commission28
in their report into this area of the law. The problem, simply put, is that
information be it confidential or otherwise is too abstract a concept to
bring within the existing scheme of things.
Yet, just as the specific problems of the abstracting of electricity and the
borrowing of motorcars and pedal cycles led to the strict rules of the Theft
Act 1968 being relaxed to permit criminalization in these circumstances,29
24
See: Supra n.15, para. 2-89.
25
Oxford v Moss [1979] Crim.LR 119.
26
It was conceded that Moss never had any intention to permanently deprive the university of the paper
itself because, as in Lloyd, returning the property before anyone became aware of its absence formed an
integral aspect of his plan.
27
Canadian House of Commons Standing Committee on Justice and Legal Affairs, Report of the Sub-
Committee on Computer Crime (1983), p.14.
28
Law Commission Working Paper 110.
29
Abstracting electricity is an offence contrary to S.13 of the 1968 Act, whilst taking a conveyance and taking
a pedal cycle are criminalized by, respectively, Ss.12(1) and 12(5) of the 1968 Act.
8
JAMES COUSER
30
Supra n.28, para. 3-69.
31
The straw which finally broke the camels back in this area the government having already reneged on
its 1989 promise to Emma Nicholson MP to legislate in return for her agreement to withdraw her private
members Anti-Hacking Bill was the decision by the House of Lords in R v Gold [1988] 2 WLR 984 that the
Forgery and Counterfeiting Act 1981 could have no application against two supposed investigative journalists
who succeeded in hacking into the British Telecom Prestel Gold computer network and engaging in such
mischief as leaving a message in the Duke of Edinburghs computerised mail system which apparently read
GOOD AFTERNOON. HRH DUKE OF EDINBURGH. The prosecutions submissions in this case were
described in the Court of Appeal as a Procrustean attempt to force these facts into the language of an Act not designed
to fit them; R v Gold [1987] 3 WLR 803 per Lord Lane CJ.
32
Assuming, for the sake of argument, that he used his own photocopying machine and paper.
9
SOFTWARE PIRACY AND THE DORIS DAY SYNDROME ETC.
piracy. True enough, it can have no application against the individual who
obtains a copy of a software program through legitimate channels and then
proceeds to pirate it using her own computer, but it does deal with those
who commit the computer equivalents of trespass or burglary,33 the
immorality of which may be so great as to warrant special attention. As the
Republican Congressman Ed Zschau observed when his Capitol Hill
computer was hacked into and his records tampered with,
Yet, emotive as this issue undoubtedly has the potential to be, the
solution effected by S.1 of the 1990 Act is not to my mind a satisfactory one. In
its initial report the Law Commission expressed reservations over the
criminalization of mere unauthorised access to a computer, but altered its
opinion on the matter after receiving submissions from a number of large
corporations who each confirmed that even a suspicion that their
computer files or programs had been tampered with forced them to
expend quite considerable sums of money in order to satisfy themselves of
their systems continued integrity.
This may be true, indeed one instance cited to the Law Commission
involved the expenditure of no less than ten thousand man hours spent
checking for evidence of sabotage, yet is this really so different to other
instances where the owner of property may be placed in doubt as to its
integrity, but without the imposition of liability ever being considered? The
obvious example is that of the homeowner who finds that their door keys
have been borrowed for two hours: they will almost inevitably feel
compelled to change their locks, quite possibly at considerable expense,
but surely imposing criminal liability upon the borrower is taking the
concept of the inchoate offence a step or three too far? Even more to the
point, from the perspective of software theft, is the instance where a
financial institution fears that the written source code for its credit card
encryption program may have without authorisation been viewed and
memorised by some third party. This would be no offence, but copying the
program from their computer would be. As Lloyd and Simpson put it:
33
In fact S.2 of the Computer Misuse Act 1990 provides an ulterior intent offence, with enhanced penalties,
applicable against those who commit the S.1 offence with intent to commit any other offence (a) for which the
sentence is fixed by law; or (b) for which a person . . . may be sentenced to imprisonment for a term of five years, but as the
ulterior offence committed would, for the purpose of this paper, be at most criminal copyright infringe-
ment which carries a maximum sentence of two years imprisonment, this section could have no application
and it is not proposed to discuss it further.
34
Congressman Ed Zschau cited in Computer Ethics (1994), T. Forester and P. Morrison, p.41.
10
JAMES COUSER
35
I. Lloyd and M. Simpson Law on the Electronic Frontier (1994), Edinburgh University Press pp.22/23.
36
Introduction to Computer Law (1996), D. Bainbridge, pp.250/251.
11
SOFTWARE PIRACY AND THE DORIS DAY SYNDROME ETC.
and hard drive which is objectionable because this is a purely incidental aspect
of the crime like getaway drivers that break speed limits after having robbed a
bank.37 Yet in the eyes of the 1990 Act the competitor is legally no more
culpable than if he had used the computer to play Minesweeper or, for
that matter, blow dry his hair or wash his socks. Such a provision may be
effective, but that of itself does not make it any less objectionable.
Professor Smith identifies the problem as being
37
Digital Crime (1997), N. Barrett, p.67.
38
Computer Crime: A Reply A. T. H. Smith (1987) 3 Yearbook of Law, Computers and Technology 204, 205.
39
Indeed, Smith goes on to observe correctly in my opinion that As judges struggle with the old law, we
cannot be sure that they can be clear about the sorts of interests that they ought to be seeking to protect;
See: Ibid.
40
Despite the use of the word anything in this section it was conceded at all levels that this had to be
interpreted as meaning any property; See: Information Technology Law (Butterworths, 1993), I. Lloyd, para.
16-20.
12
JAMES COUSER
... confidential information is not property for the purpose of the law of
theft in Canada . . . If this interpretation should be thought to be
inadequate to meet the needs of modern Canadian society, particularly
because of its implications for the computer age, the remedy must be a
change in the law by Parliament. It is not for a court to stretch the
language used in a statute dealing with the criminal law, to solve
problems outside the contemplation of the statute. If an accused
persons conduct does not fall within the language used by Parliament,
no matter how reprehensible it might be, it ought not to be
characterised as criminal.41
In the Court of Appeal, however, the majority took the view that, at the
very least, confidential information would fall within the ambit of S.283, on
the basis that such protection was appropriate for confidential information
which has been gathered through the expenditure of time, effort and money by a
commercial enterprise for the purpose of its business.42 As has already been
adverted to, this decision was overturned by the Supreme Court43 following
considerable criticism of the Court of Appeals decision, but that is not to
say that the question of whether confidential information should constitute
property has been categorically laid to rest and it is worth rehearsing the
arguments for and against briefly at this juncture.
Dohertys reasons for agreeing with the Court of Appeals approach are
perhaps best summed up by simply citing the title of his paper: Stewart:
When is a Thief not a Thief? When he Steals the Candy but not the Wrapper.44 This is
a view with some merit and, from the point of view of software piracy, more
than just a little relevance. What matters to the programmer who has spent
six months creating a piece of software is not that he has been deprived
permanently or otherwise of a 1 floppy disk, but rather that he has lost
the fruit of his labour. It is here, however, that the flaw in this argument
becomes apparent.
As we have already seen, the programmer has not been deprived of his
work, rather he has had its exclusivity removed. His economic interests have
been adversely interfered with, but the information the knowledge
which was previously his exclusively has not disappeared into the ether,
even if its practical worth to the programmer may have diminished. James
Madison once observed that,
41
R v Stewart (1982) 138 DLR (3d) 73, 85.
42
R v Stewart (1983) 149 DLR (3d) 583, 595.
43
R v Stewart 50 DLR (4th) 1.
44
Stewart: When is a Thief not a Thief? When he Steals the Candy but not the Wrapper G. Doherty (1988)
63 Criminal Reports 3d 322.
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SOFTWARE PIRACY AND THE DORIS DAY SYNDROME ETC.
Knowledge will ever govern ignorance; And people who mean to be their
own Governors must arm themselves with the power which knowledge
gives.45
45
Letter from James Madison to W.T. Barry (4th August 1822), reprinted in The Complete Madison
(1953), S. Padover (ed.) p.337.
46
The Federal Commissioner of Taxation v United Aircraft Corporation cited in Theft of Information, R. Ham-
mond (1984) 100 LQR 252, 253.
14
JAMES COUSER
47
Ibid, 257, footnotes omitted.
48
For the purpose of this argument I will assume that Adam came by this information legitimately, albeit
that I accept that even legitimate means of obtaining such details have to be regarded as morally suspect in
the extreme; See: Who Owns Your Name and Address? in Who Owns Information? From Privacy to Public
Debate (1994), A. Branscomb, pp.9/29.
49
See: University of London Press v University Tutorial Press; Supra n.6. This is a considerably less onerous test
to satisfy than that of novelty required in patent law.
50
See: Rank Film Distributors v Video Information Exchange [1982] AC 380, 443, per Lord Wilberforce.
51
Supra n.42.
52
Supra n.35, p.36.
15
SOFTWARE PIRACY AND THE DORIS DAY SYNDROME ETC.
53
See: Why Patents are Bad for Software, S. Garfinkel, R. Stallman and M. Kapor (1991) 8 Issues in Science
and Technology 50.
54
Supra n.1, p.xiii.
55
Computer Ethics (1994), T. Forester and P. Morrison, p.63.
16
JAMES COUSER
despite the Federal District Court accepting that this was simply a business
process which, if done by hand, could be afforded no protection
whatsoever. It seems that whoever becomes the first to reduce a process into
computer code is to be treated as the owner not just of that particular
process, but also of the knowledge that it relates to.
This is an alarming enough prospect even where what is being
considered is the limited property status accorded to information by the law
of intellectual property, but it represents a wholly unacceptable straitjacket
upon the back of innovation where the absolute property interests of the
law of theft are concerned. The problem, simply put, is that software
programmers are torn between competing interests:
... the large software companies have interests both in the protection of
software (their own) and in a limitation on the protection of software
(their competitors).56
This, however, is simply the status quo of power; having utilised the work
of others in order to create their software, the programmers now wish to
claim it all of it as theirs and theirs alone. Mitch Kapor, the creator of
Lotus 1-2-3, may condemn this as anti-innovative, citing the fact that had
patent protection been available to the software company which wrote the
earlier, but arguably inferior, VisiCalc spreadsheet program then he would
have been prevented from developing his superior product. This may be so,
but it did not stop him from obtaining such protection for his product when
the ambit of patent protection was extended in America, and it has not
stopped him from successfully suing a number of other programmers who
he considers to have copied his software. Indeed, it is not uncommon for
programmers to include fingerprints in their software unique mistakes
designed to catch out those who attempt to copy a program through a
process of reverse engineering from the original because, as Lloyd and
Simpson observe in relation to the case of John Richardson Computers Ltd v
Flanders and Chemtec Ltd:57
It appears to be a feature of cases in this area that similarities of mistakes
rather than of valuable features is more damaging to an alleged copyist.58
Having drawn on the work of others, they now claim that it is wrong of
anyone else to do the same. This is a contention that has cultural, as well as
legal, implications because whilst America was once the biggest copyright
pirate of them all,59 it now complains the most vociferously about the
behaviour of those in the Third World and eastern Europe, arguing in
favour of an extension of the existing law in the name of professional ethics.
56
Supra n.1, p.159.
57
John Richardson Computers Ltd v Flanders and Chemtec Ltd [1994] FSR 144.
58
Supra n.35, p.75.
59
See: Supra n.1, pp.2/3.
17
SOFTWARE PIRACY AND THE DORIS DAY SYNDROME ETC.
Yet anyone can embrace ethics when it is in their perceived best interests to
do so, when they have more to lose than they do to gain by not doing so, but
can that truly be described as an ethical position? Having lost their ethical
virginity should the likes of Bill Gates or Mitch Kapor be allowed to re-
invent themselves and seize the moral high ground in order to enhance the
value of their share holdings? Groucho Marx once remarked Ive been
around so long I can remember Doris Day before she was a virgin. Should we now
say the same of those programmers who encourage us to think and speak in
terms of software piracy and software theft?
In part the deeply condemnatory tone that I have adopted misrepresents
my views. It is not that I am advocating deregulation or even that I am
arguing that the anti-competitiveness of suppressing innovation is
necessarily a bad thing.60 There are wider societal issues at play here, and an
element even a very substantial element of anti-competitiveness may be
justifiable in order to realise the greater utilitarian goal of having
computers and computer networks that are able to communicate with each
other. Refrigerators that tell the supermarket when we are out of milk, cars
that tell the garage that their tyres are low on air; the permutations are
endless, but all presuppose compatible software which in turn presupposes
a dearth of alternatives. Needless to say, this does not even begin to consider
the advantages to consumers of economies of scale.61
These are powerful considerations, and their worth undoubtedly does
warrant protection. Yet, as we have seen, the law of theft as it is presently
formulated is simply too blunt an instrument to take account of the fine
distinctions presented by the quandary of offering a degree of protection
for computer software which is neither too onerous nor too weak. This is an
issue which we will return to, but first this might be a reasonable point at
which to consider what it is about the piracy of information that we find so
objectionable, along with an evaluation of the effects upon information
holders and information seekers of what I will term the Doris Day syndrome
the tendency to reinvent oneself in such a way as to alter not only ones
own status in relation to information, but also the status of others in relation
to it.
60
Although for a strident defence of exactly such a position, see:- Who Owns Computer Software in Who
Owns Information? From Privacy to Public Access (1994), A. Branscomb, p.138, pp.151/154.
61
These and related benefits are concisely presented in Bill Gates Rules Cyberspace, OK?, M. Beachill,
Living Marxism No. 110 (May 1998), pp.36/37.
18
JAMES COUSER
established. This was comprised of seven scholars from around the world
whose task it was to undertake the mammoth process of translating and
collating the information contained within the Scrolls.62 This represented
more than simply the work of a few years, it was, and still is, the work of many
lifetimes. Each of the scholars made a huge personal academic investment
in the project, because having embarked upon their work each of them
knew that it would be decades before it finally saw fruition. Indeed, some of
them would reach retirement age before that day arrived, in which case
their work was continued by another academic, picked by the retiring
scholar and agreed by the other members of the International Committee.
Doubtless what each of these seven scholars feared the most was that
someone else would pre-empt the publication of their finished research. In
much the same way that a programmer may live in fear of a competitor
introducing a similar piece of software first, so too these academics dreaded
the prospect of reaching the summit of the mountain only to find that
another had already beaten them to it. Such an outcome would mean that
decades of their lives had been expended upon a project for which they
would not even receive the academic credit. It is probably no exaggeration
to say that it would be the most grievous injury that could possibly be
inflicted upon them and, perhaps not surprisingly, their research was
conducted in great secrecy. Furthermore, publication of a paper which
concerns the work of a fellow academic represents a gross breach of
archaeological professional ethics and is, apparently, punished by the
offending academic being shunned within the international archaeo-
logical community.
All of this is understandable; such considerable personal sacrifice
surely deserves a considerable degree of protection in return. It is in
everyones or at the very least every academics best interests that
matters should be so arranged because preventing them from stealing
another academics thunder in turn helps to preserve the integrity of
their own work. Archaeology is seemingly a co-operative and close knit
community and the seven scholars engaged on the research into the
Dead Sea Scrolls probably felt reasonably confident that their worst fears
would never become reality. On 4th September 1991 they discovered
that this was an overly optimistic hope.
From the perspective of the seven scholars, the Biblical Archaeology
Society of Washingtons (BAS) announcement that it intended to release a
translated section of the Scrolls for general dissemination amounted to
little more than academic vandalism, and there were many other
archaeologists who agreed with them. Yet condemnation for the BASs
62
A fuller account of this discovery and the subsequent establishment of the International Committee to
Edit the Scrolls of Cave 4 Qumran can be found in Who Owns Religious Information? in Who owns Infor-
mation? From Privacy to Public Access (1994), A. Branscomb, pp.119/137.
19
SOFTWARE PIRACY AND THE DORIS DAY SYNDROME ETC.
actions was in no way universal; far from having stolen from the work of
the seven scholars, the BASs translation represented an astonishing piece
of archaeological detective work and was itself arguably a substantial
contribution towards the research into the Scrolls.
The secrecy surrounding the work of the seven scholars was such that few
details about the Scrolls had ever been released. There were no transcripts
or photographs of them in general circulation, but there was a
concordance an alphabetical listing of every single word in the Scrolls,
along with the words immediately preceding and following it and it was
from this that, using an ordinary desktop computer, the BAS had
succeeded in piecing together their translation as if it were a jigsaw puzzle.
The seven scholars of the International Committee may have had their
interests in the previously confidential information, and indeed their
interests in literally decades of research, adversely interfered with but, as
the BAS demonstrated, there really was no need for painstaking and time
consuming reconstruction when a relatively simple computer program,
coupled with the requisite archaeological expertise, could exponentially
expedite matters.
Furthermore, whilst other archaeologists would have still been aware of
their own self-interest in the maintenance of the ethical norm which helped
to preserve the integrity of research, the seven scholars had hardly
enamoured themselves by their attitude towards other academics over the
previous forty years. There had been no transcripts or copies released, and
the numerous requests for access to the actual Scrolls themselves had all
been rebuffed out of hand. Additionally, as the scholars tended to appoint
their own replacements, the noses of a large number of leading academics
had, over the years, been put out of joint as they were passed over for a
position on the International Committee in favour of protgs who were
often perceived as being less gifted.
Most damning to the seven scholars cause, however, was the sheer length
of time that the above state of affairs had persisted. Secrecy in order to
preserve academic integrity is one thing, but a forty year monopoly is
something else altogether. As Dr. Lawrence Schiffman, Professor of
Hebrew and Judaic Studies at New York University put it:
Most will regard those who make this material available as Robin Hoods,
stealing from the academically privileged to give to those hungry for the
knowledge secreted in those texts.63
Whatever the ethics of their behaviour might happen to be, there can be
little doubt that the BASs actions forced a compromise out of the seven
scholars. Within two months the Israeli Antiquities Authority and the
63
Dr. Lawrence Schiffman cited in Monopoly Over Dead Sea Scrolls is Ended, J. Wilford, New York Times
(22/9/91), p.A.20.
20
JAMES COUSER
64
See: Dishonesty in Theft: A Dispensable Concept, D. Elliot [1982] Crim.LR 395.
21
SOFTWARE PIRACY AND THE DORIS DAY SYNDROME ETC.
easily recognise when they see it.65 However, the Act does contain two provisions
which offer some degree of guidance. S.1(2) of the 1968 Act provides that,
Whilst S.2 of the 1968 Act identifies three examples of what is not
dishonest, and one example of what may be:
S.1(2) would seem to dispose of the software pirate who seeks to rely upon a
Robin Hood defence by arguing in favour of the sanctity of information.
The individual who posts software onto an internet bulletin board with the
intention that others should download it for free may obtain no tangible
benefit beyond a sense of warmth in his heart at having facilitated the free
flow of information but, so says the 1968 Act, it is not his gain but rather the
victims loss which renders a particular set of circumstances dishonest. Yet,
as we have seen, S.2 mitigates any strictness which this might have
engendered and it is instructive to consider the ways in which this has been
construed.
At common law it is clear that even the strongest moral claim will not
render honest that which is otherwise dishonest,66 but whilst S.2(1)(a) of the
1968 Act speaks specifically of a right in law this does not necessarily exclude a
belief in a merely moral right67 and it seems likely that, as the jury are now the
65
Supra n.10, para. 39.
66
Southwark London Borough Council v Williams [1971] Ch. 734, 744; Supra n.15, para. 2-116, fn.2.
67
Supra n.15, para. 2-116.
22
JAMES COUSER
arbiters of what is and is not dishonest,68 the common law rule has been
displaced and, for example, the jury would now be entitled to acquit the
Little Match Girl had she chosen to appropriate a coat rather than freeze to
death.69
However, whilst it is one thing to blithely identify that certain moral
claims may in certain circumstances negate dishonesty, it is quite another
thing altogether to formulate a test by which to separate out the deserving
from the undeserving. In R v Feely70 the Court of Appeal held that the
question of what amounted to dishonesty was one for the jury to decide by
reference to,
... the current standards of ordinary decent people ... [as i]n their own
lives they have to decide what is and what is not dishonest. We can see no
reason why, when in a jury box, they should require the help of a judge to
tell them what amounts to dishonesty.71
Notwithstanding the fact that different juries may reach different
conclusions about similar sets of circumstances, this is a workable enough
if somewhat utilitarian test but, perhaps mindful of the fact that an overly
objective approach might force juries to convict those in the position of
the Little Match Girl, the Court of Appeal upheld a jury direction given by
the trial judge in the case of R v Gilks72 which suggested that they try and
place yourselves in [the defendants] position at that time and answer the question
whether in your view he thought he was acting dishonestly.73 This led to a finding
that Mr. Gilks had not been dishonest in keeping the money overpaid to
him by a bookmaker, despite his earlier admission that such conduct would
be dishonest in relation to receiving too much change from a grocer,
because apparently bookmakers are a race apart.74 The flaws in this
approach are not especially difficult to discern.
Such an approach is hopelessly subjective. An individual may hold a
heartfelt conviction that large multi-national software companies, such as
Microsoft or Apple, are also a race apart, and yet that of itself should not be
a sufficient excuse to dispose of the question of whether pirating their
software is dishonest. It may be perfectly possible to argue, following Gilks,
that whilst it would be dishonest to pirate software from a less well
established source, the sheer wealth and resources of corporations like
Microsoft and Apple renders them fair game, but as Professor Williams
pointed out:
68
Infra n.76 and accompanying discussion.
69
Even at common law this could perhaps be viewed as an example of the newly discovered defence of
duress of circumstances; See: R v Conway [1988] 3 All ER 1025.
70
R v Feely [1973] 1 All ER 341.
71
Ibid, 345, per Lawton LJ.
72
R v Gilks [1972] 3 All ER 280.
73
Ibid, 283 per K. Bruce Campbell Esq. QC cited by Cairns LJ.
74
Ibid.
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SOFTWARE PIRACY AND THE DORIS DAY SYNDROME ETC.
75
Textbook of Criminal Law (1983), G. Williams, pp.727/728; for criticism of Williams approach see:
Criminal Law: Text and Materials (1994), C. Clarkson and H. Keating, p.741.
76
R v Ghosh [1982] 2 ALL ER 689.
77
Supra n.15, para. 2-122.
78
The Court of Appeal has held on a number of occasions that a Ghosh direction will not be necessary in
every case and that it depends upon whether the facts of the case point to the defendants state of mind as
being one where a genuine mistake may have been made; see: R v Price (1990) 90 Cr. App. Rep. 409, 411.
However, where this direction is given it must be put to the jury in this order; see: R v Green [1992] Crim.LR
292.
79
Supra n.76, 696.
80
Supra n.64, 398.
24
JAMES COUSER
81
Fuller details of this somewhat ignominious day for American justice can be found in Supra n.55, pp.
55/56. Inslaw, the bankrupted company, were ultimately quite fortunate as it was only a loophole in the law
of bankruptcy which allowed them to sue the Federal government winning $6.8 million plus legal fees and
consequential damages who would otherwise have been immune from suit.
82
The Australian (7/11/89), cited in Supra n.55, p.53.
83
As Mirror Group Newspapers were raided by the Federation Against Software Theft during the era of
Robert Maxwell I am willing to concede that their inclusion as an example of an honest company is open to
question. However, as no less than 80% of their software was found to be pirated an impressive, if rep-
rehensible, feat by anyones standards I felt compelled to mention them in order to highlight the extent of
the problem.
84
See: Software and the Law, J. Pallette, PC Week (7/10/86), p.79.
25
SOFTWARE PIRACY AND THE DORIS DAY SYNDROME ETC.
realise that his conduct, of which a member of such a class was a victim,
was generally regarded as dishonest.85
Yet, as Griew continues, it is not acceptable that a claim of that sort
should be capable of even being advanced.86
85
Dishonesty: The Objections to Feely and Ghosh, E. Griew [1985] Crim.LR 341, 353.
86
Ibid.
87
Supra n.55, p.67.
88
Ibid.
89
Pirates Raid Windows 98 Print Works , M. Becket, The Daily Telegraph (27/7/98), p.29.
90
Supra n.44.
26
JAMES COUSER
91
If Strouds analysis is taken too literally then it seems that a jumbo jet is a bird because it flies: It Thinks,
Therefore it is . . . Or is it?, P. Fisher, The Daily Telegraph Connected Magazine (9/7/98), p.8, p.9.
92
See: A Short History of Western Legal Theory (1992), J. Kelly, p.296.
27
SOFTWARE PIRACY AND THE DORIS DAY SYNDROME ETC.
If there are no fresh starts in history, if the future is made from fragments
of the past, then the discourse of entitlement in an information society
will draw on images of information that were produced in a society where
information bore a very different relationship to technology, to power,
to wealth, a very different relationship even to our own bodies.98
93
See: C. Tapper, Computer Law (Longman 1989) pp.285/286; M Wasik, Crime and the Computer (1991)
pp.115/118.
94
See: R v Siu Tak-Chee (unreported), cited in Computer Misuse (1986), Report of the Tasmanian Law
Reform Commission.
95
Supra n.31 n.38 and accompanying commentary.
96
Prosecutions Under the Computer Misuse Act 1990, R. Battcock (1996) 6(6) Computers and Law 22.
97
Supra n.9.
98
Supra n.1, p.27.
28
JAMES COUSER
99
Ibid, p.27.
100
Moore v The Regents of the University of California, 793 P. 2d 479 (Cal. 1990), Cert. denied, 111 S. Ct. 1388
(1991).
101
Supra n.15 and accompanying commentary.
29
SOFTWARE PIRACY AND THE DORIS DAY SYNDROME ETC.
102
Supra n.55 and accompanying commentary.
103
Andrea Del Sarto, Robert Browning.
104
Uber den buchernachdruck, C. Krause (1783) 1 Deutches Museum 415, cited in and translated by M.
Woodmansee The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the
Author (1984) 17 Eighteenth Century Studies 425, 443/444.
30